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XX NOV 29 1993
Professor Bonnie Tucker Arizona State University College of Law Tempe, Arizona 85287 Dear Professor Tucker: This letter is in response to your letter of May 6, 1993, requesting clarification of the transportation provisions of the Americans with Disabilities Act of 1990 ("ADA"). I apologize for not responding to your letter earlier. The ADA authorizes the Department of Justice to provide technical assistance to individuals and entities having rights or obligations under the Act. This letter provides informal guidance to assist you in understanding the ADA's requirements. However, it does not constitute a legal interpretation or legal advice and it is not binding on the Department of Justice. In your letter, you request clarification regarding the apparent conflict between the regulations promulgated by the Department of Justice ("DOJ"), and the regulations promulgated by the Department of Transportation ("DOT") . Although the DOT's regulations may be narrower than those of the DOJ, we do not believe that they conflict with each other. I. Private Universities Private universities are considered "public accommodations" under the ADA, and, therefore, have ongoing obligations under title III of the statute. As you note, title III requires private entities, including private universities, to provide people with disabilities "full and equal enjoyment" of their programs and services, 28 C.F.R. S 36.201, and may require a private entity to modify its policies, practices or procedures, 28 C.F.R. S 36.302; provide necessary auxiliary aids and services, 28 C.F.R. S 36.303; and remove barriers to access in existing facilities when such removal is readily achievable, 28 C.F.R. S 36.304.
cc: Records, Chrono, Wodatch, Magagna, Perley udd\perley\policy\tucker
01-02762 -2Title III also contains specific provisions regarding the operation of fixed route and demand responsive systems by private entities. 28 U.S.C. S 12182 (B) and (C); see also 28 C.F.R. S 36.310. Specifically, the statute requires private entities that operate fixed route systems, when acquiring vehicles, to either (a) purchase or lease vehicles that are readily accessible to and usable by individuals with disabilities (if the vehicle has a seating capacity in excess of 16 passengers), or (b) ensure, upon the purchasing or leasing of a vehicle that has a seating capacity of 16 or fewer passengers, that the system provides a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities. 28 U.S. C. S 12182 (B) . The statute is silent as to a private entity's responsibilities regarding the operation of a fixed route system absent the purchase or lease of a vehicle. With respect to demand responsive systems, the statute requires a private entity to operate its demand responsive system so that, when viewed in its entirety, the system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities. 28 U.S.C. S 12182(C). This requirement exists whether or not the private entity has purchased or leased a new vehicle. In interpreting these provisions, the DOJ regulations specifically defer to those promulgated by the DOT. see 28 C.F.R. S 36.310 (c) ("a public accommodation ... shall comply with the requirements pertaining to vehicles and transportation systems in the regulations issued by the Secretary of Transportation"). Under the DOT regulations, transportation services operated by private universities are subject to the provisions governing private entities not primarily engaged in
the business of transporting people, 49 C.F.R. SS 37.25(a), 37.101. These regulations track the statutory requirements for fixed route systems presented above. The issue remains, therefore, as to what obligations, if any, other than those relating to vehicle acquisition, apply to private universities that operate fixed route systems. As both the statute and the DOT regulations are silent on this issue, the DOJ regulations are controlling. Section 36.310(b) of the DOJ regulation provides that a private entity shall remove transportation barriers in existing vehicles used for transporting passengers where such removal is readily achievable. The regulation specifically provides, however, that such barrier removal does not include the installation of lifts. Accordingly, a private university must remove architectural barriers in its existing vehicles so long as such removal does not require the installation of lifts. 01-02763 -3A private university must also make reasonable modifications in its policies, practices, and procedures. Such modifications may include the provision of transportation services to individuals with disabilities who are unable to use the existing system. See 28 C.F.R. S 36.302 (modifications in policies, practices, or procedures). For example, a university might be required to provide shuttle car or van service on demand. Alternatively, a university might be required to reimburse a student for any costs incurred in arranging her own transportation. The modifications required would depend upon the service provided by the university, the particular needs of the individual, and the nature and cost of the modifications. In your letter, you ask whether a university must either (a) purchase or lease accessible vehicles now or (b) provide some form of "paratransit" service. in light of the above analysis, a private university is not necessarily required to purchase or lease accessible vehicles now. Private universities that operate demand responsive systems must now provide some sort of equivalent service to persons with disabilities. Although this need not specifically be "paratransit" service (i.e., it need not comply with the DOT regulations governing the provision of paratransit services by public entities), the service must satisfy the standards delineated in S 37.105 of the DOT's
regulations ("equivalent service standard. ") Likewise, private universities that operate fixed route systems must engage in readily achievable barrier removal and make reasonable modifications in their policies, practices, and procedures. Such modifications may result in the provision of paratransit-like services, although these services need not comply with the DOT's regulations governing public-sector paratransit systems. II. Public Universities The analysis regarding public universities is similar. Public universities are operated by State or local governments, and, therefore, are governed by title II of the ADA. See 42 U.S.C. S 12 115 (I)(B) (definition of public entity). Like title III, title II contains specific provisions regarding the operation of fixed route and demand responsive systems by public entities. See 28 U.S.C. SS 12142-45. With respect to public universities that operate fixed route systems, DOT has determined that such systems should be treated like commuter bus services. 49 C.F.R. S 37.25 (b) . Under title II, a public entity that operates a fixed route system must purchase or lease new vehicles so that they are readily accessible to and usable by individuals with disabilities. 42 U.S.C. S 12142(a). Most public entities, but not commuter bus services, must also provide supplementary paratransit services that strictly comply with regulations 01-02764 -4promulgated by the DOT. 42 U.S.C. S 12143 (a). Because public university operated fixed route systems are treated like commuter bus services under the DOT regulations, a public university must only purchase or lease new vehicles that are accessible, but is not required to offer paratransit services. With respect to demand responsive systems, a public university that operates such a system and purchases or leases a new vehicle must either (a) ensure that the vehicle is readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, or (b) ensure that the system, when viewed in its entirety, provides a level of service to such individuals equivalent to the level of service such system provides to individuals without disabilities. 42 U.S.C.
S 12144. The statute and the DOT regulations are silent as to a public university's obligations regarding the operation of an existing system independent of vehicle acquisition. Under the general provisions of title II, however, the public university must, to the maximum extent possible, ensure that the services, programs, and activities operated by the private university are, when viewed in its entirety, readily accessible to persons with disabilities. 28 C.F.R. 35.150. The above discussion demonstrates that a public university need not install lifts in its existing vehicles, nor need it provide "paratransit" services as described in the DOT regulations. Nevertheless, the university has the ongoing obligation to ensure that its services -- here, the operation of fixed route or demand responsive transportation systems -- are readily accessible to persons with disabilities. Accordingly, the public university has the obligation to provide transportation services that will enable a person with a disability to have an equal opportunity to participate in the programs offered by the university. Again, this could result in a "paratransit-like" system. I hope that this information answers your questions, and clarifies any apparent contradictions between the DOJ regulations and the DOT regulations. Thank you for your concern. Sincerely,
John L. Wodatch Chief Public Access Section 01-02765